N.J. law becomes an engine for development

Low-income housing rules collide with open-space efforts

April 11, 2001|By Andrew Jacobs | Andrew Jacobs,NEW YORK TIMES NEWS SERVICE

EMERSON, N.J. - It started out as a run-of-the-mill zoning skirmish over less than an acre of land.

A local group of investors wanted to construct a 16-unit apartment building on a parcel reserved for a single-family homes. The town's planning board, eager to retain the neighborhood's suburban character, said no.

But the developers knew they had a powerful weapon at their disposal. Like nearly 200 municipalities in New Jersey, Emerson had yet to file a plan on how it would accommodate low- and moderate-income housing, a requirement under the landmark state law commonly known as Mount Laurel. Under the law, towns that fail to come up with a plan can be sued by a developer, who is then allowed to construct four market-rate homes for each lower-priced unit built.

In the realm of laws with unintended consequences, a chapter could be devoted to the Mount Laurel doctrine, a groundbreaking law designed to dismantle exclusionary zoning, but that has also become an engine for the kinds of environmentally insensitive development that planning officials have been trying to rein in.

Efforts collide

In effect, New Jersey's effort to foster low-income housing is colliding head on with its ambitious plans to limit sprawl.

Created in 1975 through a ruling by the State Supreme Court, the Mount Laurel law has led to the creation of nearly 25,000 low- and moderate-income housing units, a figure that some critics have called inadequate. Others say Mount Laurel has been a disappointment for failing to spur integration in the suburbs.

In the case of Emerson's legal battle, the tussle over the parcel of land escalated after a second group of developers who had been attempting to build on a larger parcel joined the lawsuit.

Now, to the dismay of local officials, Emerson, in Bergen County, may end up with 111 town houses - most of them aimed at wealthy buyers - on a 19-acre patch of woods that town officials have been trying to turn into a park. The issue is now in the hands of a judge, who under state law must place Emerson's housing obligation over its desire to preserve open space in town.

"It feels like we're being held up," said Vincent Donato, a member of the Emerson town council who helped secure $7 million in state and county money to buy the land. "Everyone here is bitter and disappointed."

Still, most advocates for low-income housing and social scientists agree that the Mount Laurel law has provided the most successful model in the nation for providing moderately priced housing throughout a state. "If you went into any other state and said, `Open your shirt and show us whether your heart beats for the poor,' you would see it isn't beating," said Robert W. Burchell, co-director of the Center for Urban Policy Research at Rutgers University. "In New Jersey, it beats and beats in a regular way."

But while they acknowledge the Mount Laurel doctrine's success in giving the poor access to suburban living, others say it places the quest for low-cost housing over the need to preserve New Jersey's farmland and wildlife habitats, 350,000 acres of which have been lost in the past decade.

Stuart Koenig, the land use attorney for the New Jersey State League of Municipalities, said the state's admirable drive to promote economic diversity is inadvertently reshaping the landscape of dozens of communities and drawing more people to places that are desperately trying to retain their rural character. "It's not that people are opposed to affordable housing," he said. "They're just opposed to the sprawl that comes along with it."

While they regret the spate of projects that replace fields and forest, state officials, housing advocates and even some environmentalists say that the court-mandated builder's remedy - the mechanism that rewards litigious developers with additional market units - is the only way to force townships to comply with a law that was largely ignored until the Legislature gave it teeth in 1985, when the remedy was created.

"A lot of towns think they can bury their head in the sand and make Mount Laurel go away," said Sally Dudley, co-chair of the Coalition for Affordable Housing and the Environment, a group trying to persuade the state to give rural areas more flexibility in dealing with their obligation. "It's a shame because they do so at their own peril."

Developers as enforcers

Developers have embraced their role as the enforcers of the doctrine, aided by lawyers who have perfected the art of taking on noncompliant municipalities.

Hill Wallack, a Princeton-based firm that has won more than 60 Mount Laurel cases in recent years, maintains a Web site that provides a step-by-step guide to cracking open vulnerable townships. A page on the site features the image of a wallet filling up with dollars, while another provides a list of the 196 towns that are fair game and suggests that developers "contract for land in one of them, decide what you would like to build and sue."